Kesler v. Brawley 1 Win. 4, 60 N.C. 4

*5Peauhon, O. J.

-“From and after the passage of this .act, all white men, residents of the Confederate States, between tlie ages of seventeen and fifty, shall be in the military service of the Confederate States for"the war." — Act of Congress, 17th Feb., 1864, sec. 1.

. One of two’eonstruetions must be adopted : 1st. It applies to individuals who arc, at the date of the passage of the act, between the ages of 17 and 50, as dcscripiió per-sonarían, the same, in legal cfiect. as if the persons answering the. description were named, and puts them in the military service '‘for (that is, during)'the war." This meaning can he given by adding the words “who- are now’' so as ifiake it read “all white’men" residents of the Confederate States ivho are itnw'between the ages of 17 and 50 shall he in the service of the Confederate States for (that is, during) the war." “This act shall taire effect from and after its passage." According to tins construction, all white men, rvho are, at the date of the passage of the act, under the age of fifty, would be liable tp .military service during the war, notwithstanding ’they afterward'' arrive at that age, because they are embraced by the description, and all white men who are, at the date of the passage of the act, under tké-age of 1-7, would not be-liable to military service, beeause the;» do not answer the description. So,that if this construction he adopted, and judgment is .therefore rendered against the petitioner, the Courts apd Judges will he hound, as a matter of course, upon the authority of this decision, to discharge every one who has been, or may he, put in the military service, who was not, at the nassage of the act, 17 years ef age. ' .

There are two fatal objections to this construction : 1st, in order to express the meaning it is necessary to add *6words wbicb.are not found in the act, and tbo addition ®f v/bioli varies the sense materinUy. This is not authorized by any rule of construction. 2d. According to the whole scope and tenor of the act, one of iis main objects is to bring into the military service the young men who are continuously arriving at the age of l'l; and the purpose is not only to embrace those who*are It at the passage of the act, but all who shall thereafter arrive at that age : which-purpose would be defeated by this construction, and it can only be contended for on the- ground of an oversight or casus 'omissus in framing the act, which, in so important a matter, the Court is not at liberty to assume.

Th; second construction is that the. section applies to a class composed oí .all white men-between the ages of 11 and 58, without regard to the time wbe/i they may he between those age¡., and puts them iiito military service as a clat'-s fox (that is, during),the war. This meaning cam he given, simply by changing the po-'tiou of ¡ha words. C! for the war,” so as to mate the section road-, for (that is, during) the war, all white met), residents of the Confederate States, between the ages of l'J and f-0, shall he in the military service of the Confederate Sute.-.' ‘‘This act shall take effect from and after Cii passage." The Court is,authorized, by a well-soitled 5 ule of construction, to change the position of words. S¿<¡ jliiv.irris on Ctafcuios.

Indeed, this, change in.the position of words in this instance, is only ior the purpose of making fin' cense clearer. For if persone 'are conscripted an a, claw;, it follows, of course, that they cease to ho liable .when they pass out of the class,-and become liable when they outer cite class. When no time is. fixed at which they are to lie between the ages, designated, the conscription is necessarily asa class ; the distinction being, when a time is fixed the con*7scription is as individuals, descriptio personarum. Whea no time is fixed, the conscription is as a c\ass. Here the time is fixed ; so the conscription is as a class, anrT that consequence follows without reference to the position of the words “ for (that is, during) the war,” although it malíes the sense clearer to put the words at the beginning of the section, .instead of at the end. “ For the war is evidently used in the sonso of “ during the war,” and conceding that the conscription' is by a class, ii’.ihe words “for (that is, during;) the war ” had been placed at the beginning of the section, the fací that a “ senior reservo ” would not bo Hablo a-fter arriving at the age of fifty, is too plain for.discussion ; and it would be strange if the result can bo different from- the circumstance, that the words “ for (that is, during) the war ’ happen' to ho tit the end of the section. Those words Jmvo no reference- to the. time of cesvtve; that is fixed hy consorlpt'.ug as u class, and the words are manifestly used to enact that the intended conscription of all between the ages of 1'1 and 50 should continue, or bo in force, during the war.

According to this construction, ali persons under the age of se\enteen, for the time to cómo,-on arriving at -that age, enter into the class, and are liable to Military sér-viGe ; and all persons- under the ago of fifty, from time to time, on arriving at that age, pass out of the class, and are no longer liable to military service : the ride working both ways, unless, some provision be made to the contrary.

It may be objected td this construction, that it lots out of the military service all who arrive at the ago of fifty. The reply is, there is nothing in the act tenijiug to show that it was not the intentipn to let men-, who were over forty-five when conscripted, go'out of the service on arriving at the age of fifty ; and there is reason to suppose' such *8was the intention, on the idea that heads of families, at- • ter arriving at the age of fifty, would be of more uso to the country at home, than if they are kept in the military service as senior reserves. But assume this not tobe so, and that this construction also supposes a casus omis-sus — how does it compare with the casus omissus implied by the first construction ? .This lets .out ot the sénior reserves a few old men, comparatively speaking ; while that fails to take in a large body .of young men, who are looked to as the main resource of the country for future military operations in the regular army ! By reference to the census statistics, the number of young men arriving at the ago of seventeen in the course of a'year, in proportion to-old men arriving at the age of fifty, is about fifteen to one. From this it may be seen how much the public service will lose by adopting the first construction and rejecting the second : and of course if a casus omissus is to be implied in both constructions, that should be supposed which is of least consequence, aud is the most likely to have occurred. The Court is of opinion that the second is the proper construction. > :

. A perusal of the whole act, will tend to support this-construction. Mr. Winston, who argued for the government, referred to the 5th section as tending to support the first construction. It seems to. us that this, section - sustains the conclusion to which wo have arrived. The provision, that persons failing to enrol themselves at the time required u shall be placed in'tjie service-in the field, for the war, in the same manner as though they were* between the ages of eighteen- and forty-five,” is imposed as a penalty diUsuch as are recusant; in respect to whom, the term of service is fixed, and excludes the idea of a general liability of all to serve for the tear. The sugges*9t-ion of tlio learned counsel, that tlie proviso in this section, that tlie persons liientionéd shall constitute a reserve for State defence, &c., should be modified by adding the words, “ except those who fail to enrol themselves,” has nothing to support it.

Our conclusion is also strengthened by‘reference to the other conscription acts. íhe act of April, 1862, conscripts, as a ddss. those between the ages of 18 and 35, for three years, or the war. The act of September, 1862, conscripts, as a'class, for three years or the war, and the'effect of passing out of this class, to relieve from further liability .to service, is prevented by a proviso, “when 'once enrolled all persons, between the ages of 18 and 45 shall serve the full Um,c.” This proviso was necessary, to .show an intention that, although the conscription was as a class, still, in respect to persons who should, after being enrolled, arrive at the age of forty-five, it was deemed important to retain them in service for the full time. The act under consideration in like manner conscripts for*(that is, during) the war, asli class, those between the ages of 17 and 50.' There is no proviso to continue in the service those who arrive at the age of fifty and pass out of the class. Whether a proviso to prevent this effect was left out on purpose, because it was not deemed expedient to keep senior reserves in service after they became fifty years of age, or was ,an oversight, We have no means of deciding. ' Our duty is to expound the law according to the sense of the words used by the law-makers ; and, in the absence of a proviso to the emtrary, it follows, of course, that when a ‘£ senior reserve ’' arrives at the age of fifty, he passes out of the class, and is no longer liable to military service.

There is no error in the judgment below.

Batttle, -J.,

.concurring, there w'as judgment for the petitioner.

*10Manxy, J.,

dissenting. Not concurring-m the opinion of a majority of the Court, I will state briefly the reasons of my non-concurrence.

. The military bill of February, 1884, under which the service of the petitioner is claimed, prescribes the term of service' “for the war” too plainly and positively to admit of abridgment by implications in favor of any persons embraced within its provisions. ’ ' •

The part of the bill directly bearing upon the question is the first section, and is in the following words : “That from and after the passage-of tin’s act all white men, residents of the Confederate States, between the'ages of 17 and 50, shall be in the military service of the Confederate States, for the war.”

Here, manifestly, all persons between the ages of 17 and 50 are declared to belong to the military forces of the country, for the war. That tho Congress.in this conscription of persons was regarding them as a class seems to he probable. A proper cxeyesii; of the statute, according to the view which I talro of if, requires this conce.;,noil. But it does not follow that a continuous application of the law •to the-class would enlarge or let out any one -embraced within its folds. The obligation to service under it is not during their continuance in the class, but during fita, war,

A prescribed ago is an anomalous and novel limitation to .military service ; for a term of years, for the war, or for art expedition,'ir> more usual and convenient. In. our country, whore there is no provision for beeping a register of births, and where, consequently, these records are very irregularly kept, and in most cases soon lost or destroyed, there is no fact move liable to controversy, and which, may sbe affected by a greater variety of proof, than the age -of a person. How arc questions of ago to he determined? *11It wi^ not do to make them depend upon the allegations of soldiers or the will of the commanders ; and it follow’s that some tribunal must be* established and set daily t© adjudicate cases as they arise. • In the beginning, whea enrolling men/or service, where t:me and.opportunity are afforded for investigation, questions of age are found sufficiently vexatious .and troublesome. In the midst of campaigns,- such investigations would be utterly impracticable!

My inference is, that Congress could not have intended to prescribe such "a limit to tho service of' the senior reserves, and I think it did not,

The true and reasonable interpretation of tjjS law, then,_ is, that it places in tbe military service of the Confederate States, all persons within tbe prescribed ages for the. war. .There is no other iuterpetratiOn which' will give the ordinary signification to the words used. And, as thp intention of this, as well as ail other laws on the subject, is to raise an army for fall and complete service in tbe field, it is believed to oe within the purview of the law, that from time-to time, as the junior reserves arrive at the age of 18, they may be conscribad for general service. When once so conscripted suri classed, there is no provision of the law. and no rule of the military service, I take it, whereby they beeo*me entitled at any time to ho subordinated or discharged, except for disability.

The fifth section of the bill (11th February) has been referred to as throwing some light on the question before us. I perceive but little in it to aid us. It seems to be an instance,'not unfrequently occurring in legislation, where a proviso is ma;le to’emasculate completely the section or part of the law to which it is appended. This is all.

*12In the law of the 10th April, *1862, authorizing the President to call into service persons between the ages of 18 aad4 35, it is provided, that the President may call those thereafter arriving at 18., and when called, all should serve their full term. The two acts, that of April, 1862, and the one now before us, have accomplished, in my judgmopt, the same objects, by different words. The same necessities were upon the country, .and it is proper to presume that similar provisions of law were intended to be maáe to meet them. The two laws were probably constructed by different minds, and hence the-.differenee of language. The intent seems to have boon the same, and the comprehensive and forcible words used in the act of February last, sufficiently declare such intent.

The words, for the war, or any similar words in any other connexion in the section, might be of ambiguous import. But in the connection in which they ntand, they prescribe a -term of -service, aw already stated, too plainly to be mistaken, and which I do not feel at liberty,to abridge, from anything which I find of apparent inconsistency. in the law, or from any. considerations of public, policy.

My opinion is, that the petitioner is rightfully under the control of the military authorities, and is not entitled to be discharged. *. i